Archive for May, 2015

Bye, bye Shelfer?

We mentioned in our newsletter for December 2014 that historically, damages for nuisance have been limited by the “Shelfer” rules but that the Supreme Court’s decision in Coventry v Lawrence [2014] UKSC 13 changed the law.  We believe this needs further explanation.

The Coventry case concerns noise arising from a speedway and motor racing circuit giving rise to an action in tort for the consequential nuisance suffered by neighbouring owners of a bungalow.  A court asked to stop or prevent a nuisance does so by the grant of an injunction although since the passing of Lord Cairns’ Act in 1858, judges have had the power to award damages in stead.  AL Smith LJ, in his Court of Appeal judgement in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, long ago expressed concerns about a court effectively sanctioning a party committing a wrongful act by purchasing his neighbour’s legal rights (through payment of a sum in damages) against the neighbour’s wishes.  He stated a successful claimant should, prima facie, be entitled to an injunction. If that rule is to be relaxed, he said, a good common rule is that it should be so

  1.   If the injury to the plaintiff’s legal rights is small,
  2.   And is one which is capable of being estimated in money,
  3.   And is one which can be adequately compensated by a small money payment
  4.   And the case is one which it would be oppressive to the defendant to grant an injunction.

This “Shelfer rule” was widely applied – even followed ‘slavishly’ according to Lord Sumption in Coventry v Lawrence.  Lord Neuberger, in the same case, removed the Shelfer shackles and said the outcome of a case should depend on all the relevant evidence and arguments.

However, Lord Neuberger continued

“… we are at risk of introducing a degree of uncertainty into the law.  The nature of the issue, whether to award damages in lieu of an injunction, is such that a degree of uncertainty is inevitable, but that does not alter the fact that it should be kept to a reasonable minimum.  Given that we are changing the practice of the courts, it is inevitable that, in so far as there can be clearer or more precise principles, they will have to be worked out in the way familiar to the common law, namely on a case by case basis.”

We welcome the removal of the Shelfer shackles but must now await subsequent cases to clarify the principles to be adopted by judges in granting damages in lieu of an injunction.

If you wish to hear more about the law of nuisance, why not contact Hatherleigh Training?